A court has determined that an employee had a workplace right
under the Fair Work Act 2009 (Cth) ("Act") to make a
complaint entitling the employee to proceed with her general
protections claim. The employee alleged that her former employer
engaged in adverse action by terminating her employment because she
exercised a workplace right. The employer was unsuccessful in its
application to have the claim thrown out by the court which found
that the employee had a workplace right to claim about not being
The court was satisfied that the employee had a workplace right
because she was entitled to a benefit (being full pay) and was
"able to" make a complaint about not being paid in full.
The decision does not resolve the employee's adverse action
claim, rather it clarifies that the employee has jurisdiction to
make her claim if it proceeds. Devonshire v Magellan Powertronics
Pty Ltd (2013) FMCA 207 In a separate decision, the same court has
rejected an employee's adverse action claim, finding that the
employee's complaints about management did not constitute a
workplace right covered by the general protections provisions in
the Act. The decision of Federal Magistrate Burnett (now Justice
Burnett) is reported as being the first time a court has considered
the proper construction of section 341(1)(c) of the Fair Work Act
2009 (Cth), which protects an employee's right to make
complaints or inquiries "in relation to" his or her
The employee was unsuccessful in his six-figure claim for
damages, alleging his former employer took adverse action against
him by terminating his employment because he had made complaints or
inquires about his employment. Rather, the former employer defended
its decision to terminate the employee because of a history of
"mild insubordination" and a "long standing clash of
personalities". Accordingly, the employee's
"complaints or inquiries" were found to have arisen from
the employee's discontent with his employer's management
approach and was not sufficiently connected to his employment
governed by a contractual or statutory framework to fall within the
ambit of the general protections provisions in the Act. Harrison v
In Control Pty Ltd (2013) FMCA 149
Key takeaway: Given the uncertainty that has surrounded the
operation of section 341(1)(c) of the Fair Work Act 2009 (Cth), the
decision of Justice Burnett should be welcomed by all employers,
both large and small. By applying a narrow cumulative construction
to the workplace right found in the two limbs of section 341(1)(c),
employers should be more confident about making legitimate
management decisions in the ordinary course of business with less
fear of a disgruntled employee bringing an adverse action claim
against them founded on a difference of opinion about a management
decision or a clash of personalities.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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Long experience representing many of Australia's leading employers has taught us that in employment litigation the identity of an employee's representative is a major factor in how employee litigation runs.
Australian employees receive certain entitlements (such as annual leave and superannuation) where contractors do not.
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